Report of the National Inquiry into the Land Rights of Indigenous Peoples
NATIONAL HUMAN RIGHTS COMMISSION OF MALAYSIA (SUHAKAM)
APRIL,2013
* Below the General Recomendations (without footnotes), looking at the 18 RECOMMENDATIONS - see the full report at the SUHAKAM Website
Strongly calls upon the Federal and State Governments to immediately implement the 18 recommendations contained in the 2013 SUHAKAM Report of the National Inquiry into the Land Rights of Indigenous Peoples in Malaysia, in respect of Orang Asli and the natives of Sabah and Sarawak and, as an interim measure, to impose an immediate moratorium on the creation of any land and/or resource interests and the continuation of resource extraction and enforcement activities within places claimed to be Orang Asli or native customary areas, pending the resolution of the customary land rights and resource claims of the affected Orang Asli or native communities;
GENERAL RECOMMENDATIONS
RECOGNISE INDIGENOUS CUSTOMARY RIGHTS TO LAND
10.4 The Inquiry finds that the recognition of indigenous customary rights to land is critical in protecting and promoting these rights as an indivisible and integral part of the protection and promotion of their other human rights. Successive amendments to land laws since the British colonial period have eroded indigenous peoples’ customary rights to land. But while some positive statutory provisions do exist, much more needs to be done to enhance protection so that these are aligned with indigenous peoples’ own perspectives, court decisions and international laws.
10.5 The Sabah Land Use Policy 2010, for example, refers to a need for the policy to be sensitive to ‘the traditions and needs of native communities’, which could help ensure full recognition of customary rights to land.
Recommendation 1: Address Security of Tenure
10.6 The displacement of communities mainly through the implementation of development projects, poverty eradication programmes, encroachments on indigenous peoples’ lands by plantation and other companies, and inappropriate dealings through powers of attorney, mostly by outsiders or by community leaders themselves, have occurred because of absence of land tenure security. It is therefore imperative that the government address land tenure security of indigenous peoples.
10.7 To ensure that security of tenure and customary rights as perceived by indigenous peoples are not compromised, it is recommended that before any alienation, reservation or licence in respect of any land is made, created or issued, the authorities concerned investigate fully the status of the land by reference to relevant documentary as well as actual evidence on the ground. Relevant notices must be posted in conspicuous places to ensure actual notification. Signed receipts of notices to call for testimonies of customary land rights claimants, particularly rural indigenous peoples, must be obtained and returned.
10.8 Recommendations for changes to laws and policies to address land tenure security, which have already been studied and/or adopted by the government, should be instituted immediately through legal and policy decisions.
10.9 Court decisions which have recognised the concept of indigenous/native customary rights to land should be instituted promptly through administrative orders, if not amendments to existing laws.
Recommendation 2: Clarity of Concepts on Customary Tenure
10.10 Proper studies to clarify concepts such as rayau and traditional territories (pemakai menoa, wilayah adat) are urgently needed. The study should also recommend the reasonable land size to enable indigenous peoples to support a sustainable livelihood and cultural life, particularly those who still rely fully on the land to make a decent living and for traditional cultural survival.
10.11 For other issues that still require further studies, discussions to clarify and review relevant laws and policies should be made and recommendations from the study should be subsequently implemented to enhance protection of indigenous peoples’ rights to land.
10.12 Review current definitions and criteria for the establishment of native customary rights to land in the Sabah Land Ordinance (section 15) and the Sarawak Land Code (section 10) to include other important aspects of customary land use. The National Land Code should be amended to include clear provisions recognising Orang Asli customary land use.
10.13 To review current adopted policy provisions that are not evidence -based, legal or are problematic, including but not limited to the policy giving priority to the issuance of Communal Titles in Sabah, issuing Provisional Leases in Sarawak before NCR lands are excised, and the giving of individual land titles to the Orang Asli.
10.14 It would also be pertinent to study examples in other countries on how security of tenure for indigenous peoples can contribute to the nation’s economy and to draw parallels with the contribution of indigenous peoples of Malaysia to the economy of the state. Some examples are the Waitangi Tribunal process in New Zealand and the flexible land titling adopted by Canada for its indigenous peoples, which have already shown positive economic, political and reconciliatory results.
Recommendation 3: Restitution for Non-Recognition of Customary Lands
10.15 Legal provision for the restitution of land needs to be put in place. Where the possibility of returning indigenous customary lands that have been acquired in the past is not possible or feasible, alternative land or compensation should be considered.
10.16 The Federal Constitution guarantees the right to property in Article 13 and a person’s property cannot be taken away unless the law allows it.
10.17 Deprivation of indigenous peoples’ right to land in order to carry out poverty eradication schemes, economic development and conservation efforts, or by fraudulent means through the use of powers of attorney and other forms of illegal land transfers, has occurred without adequate mechanisms for complaints and redress. Remedying past wrongs and instituting redress mechanisms will not only restore faith in the government and reconcile conflicts, but also ensure justice and fairness to those whose land has been taken.
10.18 Reconciliatory approaches that engage with actors in the justice and administrative systems and treat indigenous communities in a respectful manner could mitigate conflicts that may arise where there is a heightened level of frustration. The role of legal practitioners and mediators who understand the concepts of indigenous customary rights is important and can be strengthened through enhanced interaction with the communities.
Recommendation 4: Redress Mechanisms
10.19 The Inquiry strongly recommends the establishment of an Indigenous Land Tribunal or Commission composed of retired judges and experts on indigenous customary rights to resolve issues and complaints related to indigenous peoples’ land claims that are brought before it. The Tribunal or Commission should be empowered to decide on these complaints and issues, including appropriate settlements or redress related to a case.
10.20 In view of the high number of cases currently filed in court, the Inquiry also recommends the establishment of a Native Title Court or a special court to deal with the backlog of cases in the civil court. Depending on the powers of the proposed Indigenous Land Tribunal/Commission, its recommendations can be subsequently brought before the Native Title Court to decide on these cases. These processes will significantly reduce the time to decide on land conflicts.
10.21 Create an independent mediation mechanism eg. Ombudsman to provide assistance in land disputes involving indigenous peoples’ land claims. This mechanism can link with current efforts by the judiciary to encourage mediation for cases brought before the court. Mediation using the adat of the indigenous peoples should also be considered, thereby reflecting government recognition of their cultural traditions.
10.22 Establish a mechanism to monitor the land rights situation of indigenous peoples that works closely with relevant government departments and indigenous organisations dealing with land, and the proposed Indigenous Land Tribunal/Commission and Ombudsman.
10.23 Legal aid and other forms of support for communities wanting to use strategic litigation and targeted advocacy to seek redress through the courts should also be provided. Where free legal aid is not available especially in Sabah and Sarawak, special arrangements for counsel from the Bar Council Legal Aid Service could be extended to these states. In addition, the Sabah Law Association and the Sarawak Bar should consider extending services similar to those provided by the Bar Council Orang Asli Committee.
Recommendation 5: Address Past Policies & Programmes
10.24 Review policies related to poverty eradication programmes, ensuring that acquisition of land for such programmes does not infringe on indigenous customary land rights and that independent and periodic evaluation processes are built into the programme.
10.25 Review indigenous land development schemes and other commercial development programmes affecting indigenous peoples including the term “beneficiaries”, conditions to be imposed and the way in which Memoranda of Understanding or Agreements are explained to the indigenous peoples before the signing of such MoU or Agreement. A mechanism to obtain Free, Prior and Informed Consent from affected communities must be built in.
10.26 A policy decision should also be made to ensure inclusion in all agreements and licences, both new and those which are being renewed, among others, express conditions requiring NCR lands to be excised before the commencement of any project, a timeframe within which such requirements are to be fulfilled, and a penalty if such and any conditions and timeframe are not complied with. These conditions should also be incorporated into agreements signed between the state government or government departments (such as the JHEOA/FELCRA and JHEOA/RISDA agreements) as well as private and government-linked companies.
10.27 All areas which have been gazetted without proper survey and demarcation should be resurveyed. Areas already inhabited by people should be excluded.
10.28 There should be no eviction of communities with established customary rights, including from areas that have been gazetted as forest reserves and other protected areas.
Recommendation 6: Review Compensation
10.29 Review compensation provisions and regulations in laws relating to acquisition of land, including the rate of compensation for lands and crops. The review should take into account the livelihood and other needs of communities in the transitional period after land is taken from them until they are fully resettled.
10.30 Where possible, they should be given alternative land which is of the same value as the land acquired from them, and adequate basic facilities should be guaranteed.
ADDRESS LAND DEVELOPMENT ISSUES/IMBALANCES
10.31 The current aggressive pursuit of development in Malaysia has resulted in imbalances and negative impacts on indigenous rights. The numerous land development issues such as desecration of graves; destruction of agricultural land, crops, catchment areas and important cultural and sacred sites; water, air and noise pollution as well as unsustainable income that the Inquiry has elaborated have to be addressed to ensure development really benefits all peoples.
10.32 Government and development partners must reconcile economic growth priorities with security of tenure. Reviewing land concessions approved in the past, linking security of tenure to investment promotion,and wealth-sharing agreements are important practical measures to be considered.
10.33 The findings of this Inquiry also show that indigenous peoples are not against development or its process but their interests and concerns should be protected through their participation in development. Central to this concern is the commitment “to improving the livelihoods of the people and communities by creating the conditions needed for them to sustainably manage forest”.
Recommendation 7: Adopt HRBA to Development and FPIC Law
10.34 The Federal Constitution in Article 5 guarantees the right to life, which the courts have elaborated to include a right to livelihood and quality of life. The Declaration on Right to Development, the UNDRIP, ILO C169, CRC, CEDAW and ICESCR all contain provisions and legal measures that promote the right of participation in various forms. The report of the UN Expert Mechanism on the Rights of Indigenous Peoples on “indigenous peoples and the right to participate in decision-making” stressed the importance of State parties in ensuring that corporations respect the rights of indigenous peoples to give or withhold their free, prior and informed consent to operations that may affect their rights.
These aspirations are clearly articulated under Articles 193 to 196 of the UN Conference -Rio+20 outcome document. Malaysia participated at two UN Conferences on Sustainable Development better known as “Rio gatherings” and endorsed the Agenda 21 document emerging from the first gathering and ‘The Future We Want’ document in June 2012 Rio+20 gathering. In both there are clear global commitments towards sustainable development.
10.35 The UNDP recommended that States adopt a human rights based approach (HRBA) to development so as to ensure such development will benefit both the state and its citizens. The UNDRIP and ILOC169 also recommend the adoption of an FPIC law in order to obtain consent from indigenous peoples and ensure that they would also benefit from development programmes.
10.36 In line with international standards, the State and Federal governments must adopt such a human rights based approach to development and adopt an FPIC law outlining consent-making processes that ensure effective participation of affected indigenous communities.
Recommendation 8: Ensure Land Development Does Not Adversely Impact Indigenous Peoples
10.37 Prevailing development in Malaysia leans towards the development of large-scale projects (mainly plantations) by private sector investment or government linked companies. Studies (Cramb 2007, Majid Cooke 2012, and Li 2011) have shown that implementing large-scale development projects has compounded land conflicts rather than improving land matters, and poverty among indigenous peoples has not been reduced significantly.
10.38 The Special Rapporteur on the Right to Food in his report to the UN General Assembly (A/65/281) highlighted the threat to the right to food from large-scale land investments and recommended that land development schemes must be designed in ways that do not lead to evictions, disruptive shifts in land rights and increased land concentration.
10.39 The findings of the Inquiry indicate that when management objectives of business or government agencies change because of changes of parties in power, the effects on the ground are felt directly by indigenous peoples through the scaling down of the project. Scaling down are done through reductions in the anticipated number of participants, the cutting down of promised entitlements which means non-delivery of promised (usually unsigned) entitlements. Worst case scenarios are in the form of abandonment of projects; government relinquishing authority over the projects to other organisations or business entities; or outright sale of assets to other organisations.
10.40 To ensure land development does not adversely impact indigenous peoples, indigenous peoples’ land and land claimed by indigenous peoples which is acquired for development and poverty eradication programmes need to be reviewed with the full and effective participation of affected communities.
10.41 The government also needs to institute more stringent guidelines for poverty eradication programmes and built-in evaluation processes to ensure that they meet the targets and do not infringe on the rights of others.
10.42 A review process on the calculation and disbursement of dividends and other entitlements, and the timeframe for transfer of land ownership to participants should also be conducted for indigenous land development schemes.
Recommendation 9: Promote Successful Development Models
10.43 Adopt small scale land development models where indigenous landowners can be fully involved. Such models should ensure land ownership and management remain in the hands of indigenous peoples, but at the same time, training opportunities to enhance skills and management should be given.
10.44 Ensure better governance of land and tenure, as well as “best practices” by companies to make certification systems perform as they should. Better governance to improve conditions of timber and palm oil certification, housing and urban development as well as extractive industries must include the necessity to acquire free and prior informed consent from all those affected especially indigenous peoples with customary rights.
10.45 Businesses should also be made more accountable and required to respect human rights of indigenous peoples. International standards regulating timber industries to comply with the international timber certification and trade regulations should be adopted such as the signing of Voluntary Partnership Agreements to trace where timber was harvested to ensure legality of its source and to curb illegal timber trade with particular emphasis on respecting customary land and human rights.
10.46 Timber industries should also ensure timber extraction is respectful of the rights of the indigenous peoples. International standards regulating timber industry to comply with the international timber certification and trade regulations should be adopted such as the signing of voluntary partnership agreement (VPA) to trace where timber was harvested to ensure legality of its source and to curb illegal timber trade with particular emphasis on respecting NCR land and human rights.
Recommendation 10: Policy Towards People-Centred Inclusive-Sustainable Development
10.47 The agenda for sustainable development with a balanced policy agenda for economic, social and environment agenda must be the cornerstone of public policy towards indigenous people and the forest. It must have a very firm commitment for inclusive development which is sustainable, equitable and empowering.
10.48 The Federal and State governments must also adopt sustainable forest and oil palm management in mainstreaming economic and environment policies. This necessitates the establishment of a national action taskforce comprising all the stakeholders and indigenous representatives, human rights and civil society organisations to ensure the effective realisation of the sustainable development agenda.
PREVENT FUTURE LOSS OF NCR LAND
10.49 To ensure lasting solutions, any potential loss of land as a result of prevailing factors has to be expeditiously addressed since protecting and promoting the Indigenous Peoples’ right to land is an indivisible and integral part of the protection and promotion of their other human rights.
10.50 An important strategy that the Inquiry recommends is the respect for principles of free, prior and informed consent. Various international instruments and guidelines can be useful references such as the UN Development Group Guidelines on Indigenous Peoples’ Issues, the UNDRIP, ILO 169 and CBD/Akwe Kon Guidelines, EMRIP and PFII studies, UN Human Settlements Programme –Guidance Notes for Practitioners on Land & Conflict. Other guidelines referred to earlier which relate to business and human rights are also important to recommend to both companies and government agencies to arrest future loss of indigenous customary land.
Recommendation 11: Settlement Exercise on Indigenous Customary Lands
10.51 The recommendation made in 10.7 above to investigate fully the status of any land claim or application by referring to relevant documentary as well as actual evidence on the ground is also relevant here.
10.52 Customary land claims must be settled prior to the granting of new provisional leases, licenses, projects or other land alienation.
10.53 Review and amend relevant laws to align them to universally accepted norms. It is important to mention here that the UN Guiding Principles on Business and Human Rights “Protect, Respect and Remedy” Framework developed for transnational corporations and business enterprises place the obligation on the corporate sector to include rights-based practices in their operations. Businesses are obliged to do so even in countries where laws and policies are in place to protect human rights of citizens.
10.54 Hold regular fora between indigenous peoples, government and parliamentarians, and other stakeholders to bridge gaps in perception and understanding. Such fora could also be used by the government and parliamentarians to clear other issues and questions relating to indigenous lands before proposing policy changes or passing any bills that would affect indigenous peoples’ customary land.
Recommendation 12: Recognition of Indigenous Lands in Protected Areas
10.55 The Inquiry found that customary lands claimed by indigenous peoples were included in protected areas for conservation purposes (parks, wildlife sanctuaries, water catchment etc). Where indigenous communities have acceded to such inclusion into protected areas for the enjoyment of the wider society, the government should recognise the historical ownership of land prior to gazetting such land as a protected area, and credit the community for conserving and contributing their land. Where possible, they should be allowed access to continue activities that would not jeopardise the area.
10.56 Remedies for failing to give affected communities adequate information and notices required by law prior to the gazetting of protected areas and forest reserves should be found such as the excision of the community lands, granting of an alternative area or exemplary joint management agreements for areas where communities can continue to stay.
Recommendation 13: Indigenous Peoples ́ Active Involvement in Forest Management
10.57 The information shared by relevant forest-based agencies at the Inquiry revealed that the involvement of indigenous peoples in forest management is very limited. Hence, a new policy directive is needed for enhanced and active involvement of indigenous communities in forest management programmes, especially in forest reserves. Proactive efforts to encourage community-based forest management, where clear structures, functions and decision-making processes for indigenous peoples, are recommended. This effort, which had been tested and proven successful in Nepal, will prompt indigenous communities to take the lead and manage resources, while the government plays the role of supporter or facilitator.
ADDRESS LAND ADMINISTRATION ISSUES
10.58 Land administration plays a key role in ensuring indigenous peoples’ right to land is implemented. Currently, an enabling environment including clear structures, functions and decision-making processes related to land administration that can contribute to resolving much of the indigenous peoples’ land rights issues, are absent and need to be put in place.
10.59 From the findings and analyses of the Inquiry, three key recommendations to address the myriad land administration issues are set forth below i.e. capacity enhancement of land department staff, reviewing current responses to indigenous land issues, and immediate implementation of corrective measures.
Recommendation 14: Conduct Comprehensive Review of JAKOA
10.60 In view of the seriousness of complaints and apparent weaknesses of the Orang Asli Development Department (JAKOA) in protecting Orang Asli land rights as provided by the Aboriginal Peoples Act to protect and ensure the well-being and advancement of the Orang Asli, the Inquiry recommends that an independent and comprehensive review of JAKOA be undertaken at an early date. The comprehensive review should, among others, clarify whether Orang Asli land matters should remain within the purview of JAKOA or go directly to Orang Asli communities themselves.
10.61 While such is review is underway, the Inquiry recommends that JAKOA be more proactive in resolving existing Orang Asli land issues.
Recommendation 15: Capacity Enhancement of Land Departments
10.62 The Lands and Surveys Department (Sabah & Sarawak) and the Department of Land and Mines (Peninsular Malaysia), including the delegated authorities at the district level, represent the authorities dealing with land claims of indigenous peoples. Staff of these departments would benefit from capacity enhancement to ensure effectiveness in dealing with indigenous peoples’ land rights. Various human resource training courses can be conducted, including on:
•skills to engage in a respectful manner with indigenous peoples
•necessary legal understanding with regards to indigenous customary rights,
•common law and indigenous customary rights
• different models of development
• free and prior informed consent and the mechanism to obtain consent before undertaking any development programme/project
• international instruments relating to rights of indigenous peoples
10.63 A network of consultants from universities, non-government organisations, the legal fraternity, government departments and knowledgeable indigenous individuals can be established to act as resources for the training as well as to provide expertise for mediation and conflict resolution processes.
10.64 For projects that involve indigenous peoples’ land through joint-ventures, relevant authorities should provide training to their enforcement units to be efficient and proactive in ensuring that companies and government agencies are carrying out proper demarcation on the ground and observing other requirements according to the terms and conditions in the licence. A fund should be set up to acquire the services of legal experts in this area to represent the indigenous peoples during negotiations and to ensure that FPIC is properly attained.
Recommendation 16: Review Responses to Land Issues
10.65 The Findings chapters dealt with reviews of constraints and administrative responses for each of the regions. Responses that have negatively impacted indigenous peoples’ right to land should be examined closely by relevant authorities, and improvements and changes should be promptly adopted.
10.66 Gaps and weaknesses in administrative procedures and practices designed to facilitate the recognition of indigenous peoples’ rights to land should be reviewed by relevant authorities to ensure more efficient implementation, taking into consideration past recommendations and studies.
Recommendation 17: Immediate Implementation of Corrective Measures
10.67 Land development projects, whether part of a poverty eradication programme, commercial development of indigenous and or projects on land contested by indigenous peoples, often involve several departments. When conflicts occur, these departments and other private corporations often do not want to take the responsibility for resolving such conflicts. Left unresolved, such conflicts have led to more serious confrontations. The Inquiry recommends that where a number of state departments are involved, inter-departmental coordination should be immediately mobilised to address these issues. Projects that do not have such a mechanism should include this in their administrative procedures.
10.68 Adequate financial allocations should be made for the settlement of land claims, the processing of land applications and requests for surveying reserves, including computerisation of land databases. Land offices and other relevant departments should make budget requests for adequate funding based on the demands for land settlement they receive annually from indigenous peoples.
10.69 Suspicions and allegations of corruption and conflict of interest by staff of the land offices give a detrimental name to these departments, especially if proven in court. Land offices should adopt and practise zero tolerance for corruption, and ensure their processes are accountable and transparent.
10.70 Relevant authorities, particularly the land offices and forestry departments need to enhance in-house complaints handling. This could include establishing a complaints desk in each district, having proper record books for oral complaints, and establishing standards to respond to complaints. Officers who are proactive and oriented to respect indigenous peoples should be equipped with proper training to handle complaints.
10.71 Regular awareness programmes and information dissemination should be organised by Lands and Surveys/Land and Mines Department, its delegated authorities at the district level, and other relevant agencies to explain to the public their roles and functions, and the processes and procedures involved in securing ownership and the recognition of indigenous customary rights land.
10.72 Land offices need to set up a unit to address issues related to indigenous peoples’ right to land, including the implementation of guidelines and principles of free and prior informed consent, community consultations prior to project approval and implementation, and Environmental and Social Impact Assessments. Establishing monitoring units to ensure land agreements between developers and communities are complied with is also necessary.
10.73 The opinion of the Ketua Kampung, Penghulu and Batin, and the native/district chiefs (of the native courts of Sabah and Sarawak) should be sought when verifying historical evidence and the demography of an area claimed under customary rights. However, in view of the negative perception about some of these leaders, alternative ways to get historical and demographic information should also be considered.
RECOGNISE LAND AS CENTRAL TO INDIGENOUS PEOPLES’ IDENTITY
10.74 Indigenous peoples’ close relationship to their customary lands and territories means that these are significant not only as a means of livelihood but also as part of their spiritual and cultural life, and form part of their identity as peoples. The centrality of indigenous peoples’ customary lands is vital for their development and cultural survival. Effective recognition, as well as the promotion and protection of rights to land and identity would thus require time-bound, broad-based affirmative action that encompasses issues related to indigenous peoples’ development and well-being.
Recommendation 18: Establish an Independent National Commission on Indigenous Peoples
10.75 The Inquiry calls for the establishment of an independent National Commission on Indigenous Peoples. The functions of the Commission, among others, should be to advise the government on laws and policies related to indigenous peoples; propose and monitor sustainable development programmes on indigenous peoples’ land; promote participation of indigenous peoples at all levels; and conduct research on issues related to the well-being of indigenous peoples. The Commission members should be composed mainly of indigenous peoples’ representatives that receive the support from, and acceptance by, indigenous peoples of Malaysia.
END.
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